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Consequences And Complications Of Malaysia’s Extended Continental Shelf Claims – Analysis

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According to the UN Convention on the Law of the Sea a coastal state can claim a continental shelf beyond 200 nautical miles (nm) out to a maximum of 350 nm depending on the geographic and geologic circumstances. https://www.un.org/Depts/los/convention_agreements/texts/unclos/part6.htm  In 2009, Malaysia and Vietnam made a joint submission to the UN Commission on the Limits of the Continental Shelf (CLCS) for a portion of the two states’ extended continental shelf in the southern South China Sea. Last month Malaysia submitted an additional claim to a continental shelf beyond 200 nm to the “remaining portion of the continental shelf of Malaysia beyond 200 nm in the northern portion of the South China Sea.” This article explores the consequences and complications of Malaysia’s claims.

The coastal state must demonstrate that its claim satisfies the requirements specified in the UN Convention on the Law of the Sea. The CLCS then facilitates “establishment of the outer limits of the continental shelf” by making recommendations to coastal states regarding the establishment of those limits. https://www.un.org/Depts/los/clcs_new/commission_purpose.htm 

The CLCS is  obliged by its terms of reference not to affect the rights of others – including illegally infringing on the international seabed area or other states’ legitimate claims.  In doing so, it balances the rights of the coastal state with that of the international community including the coastal states that may make or have made claims to all or part of the area.

Moreover, the CLCS is not authorized to deal with overlapping claims.  This is not “approval” per se and does not prejudice delimitation of boundaries between states.  However “the limits of the shelf established by a coastal state on the basis of [CLCS] recommendations [are] final and binding.”  If the CLCS recommendations are not followed, the claim is legally weaker than it otherwise would be. 

Also if another potential claimant to the area objects to the claim and its filing, the CLCS practice has been not to consider it.  That is the situation with the 2009 joint Malaysia-Vietnam submission to the CLCS, as well as Vietnam’s unilateral 2009 submission of its continental shelf claim in the northern South China Sea.  China and the Philippines objected to these claims and the CLCS has not yet considered them. Whether or not the CLCS will consider Malaysia’s latest claim “will be included in the provisional agenda of the 53rd session on 21 August 2021. https://www.un.org/Depts/los/clcs_new/submissions_files/submission_mys_12_12_2019.html But it is likely to decide not to do so.

Although Brunei has yet to make a detailed submission to the CLCS, it has notified it that it intends to make an extended continental shelf claim that overlaps that of Vietnam and Malaysia in the southern South China Sea. https://en.wikipedia.org/wiki/Brunei%E2%80%93Malaysia_border It has not publicly objected to the Vietnam-Malaysia joint claim but it may eventually do so.

Malaysia’s 2019 filing acknowledged “that there are areas of potential overlapping entitlements in respect of the continental shelf beyond 200 M of the area that is the subject of this Partial Submission.” Indeed, China said Malaysia “seriously infringed on China’s sovereignty, sovereign rights and jurisdiction in the South China Sea” and urged the CLCS not to consider the submission. https://www.scmp.com/news/china/diplomacy/article/3043772/asean-members-ante-south-china-sea-amid-code-conduct-talks  China’s Ambassador to the UN, Wu Haitao, told the General Assembly that “The Commission on the Limits of the Continental Shelf should continue to exercise prudence when handling those submissions that involve a land or maritime dispute and perform its functions _ _ in particular the rule that any submission that involves an unresolved dispute shall not be considered.” https://www.voanews.com/east-asia-pacific/why-old-friends-china-malaysia-suddenly-disagree-over-tract-sea  

China formally objected to the 2009 Malaysia-Vietnam joint claim stating that it “has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map)”. The map displayed its nine-dash line historic claim. https://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdfhttp://vietnamlawmagazine.vn/claims-to-the-outer-limits-of-the-continental-shelf-in-the-south-china-sea-3601.html  

Given this and the ambiguous wording in its objection to Malaysia’s 2019 claim, some think that China bases its objection to Malaysia’s recent claim on its historic nine-dash line claim that was rejected by an arbitration panel in 2016. They suggest that Malaysia is taking advantage of the arbitration result and defying China’s historic claim.

This may be so. But China also has a potential extended continental shelf claim to the area in question from the Paracels.  Some legal scholars suggest that such a claim would not be valid because the China-Philippines arbitration ruling concluded that all features in the Spratlys are legal rocks not entitled to 200nm Exclusive Economic Zones or any continental shelves. Malaysia, the Philippines and Vietnam have not claimed such. But this ruling applies only to the Spratlys and the sovereignty and  legal status of the Paracels would have to be decided or agreed anew. Until that happens, extended maritime jurisdictional claims from them are as valid as any other claims to the area in question.

Neither the Philippines nor Vietnam have yet publicly protested Malaysia’s 2019 submission, but they may well do so. The Philippines objected to the 2009 Malaysia-Vietnam submission because part of it was based on Malaysia’s state of Sabah which the Philippines still claims.  Malaysia’s 2019 claim is also partially based on Sabah. The Philppines’ objection is not likely to change because the Philippines claim to Sabah is part of its constitution. https://en.wikipedia.org/wiki/North_Borneo_dispute 

When Malaysia and Vietnam were preparing their joint submission to the CLCS, the Philippines was asked if it wanted to join. The Philippines replied that Malaysia  could make almost the same claim from Sarawak and the Peninsula and that if it dropped Sabah as a base point for an extended continental shelf, it would not object to the submission.   Malaysia did not do so — perhaps because it even then eventually intended to make its recent claim also from Sabah. So the Philippines formally objected.  It stated that it was “requesting the Commission to refrain from considering the submissions unless and until the parties had discussed and resolved their disputes.” http://vietnamlawmagazine.vn/claims-to-the-outer-limits-of-the-continental-shelf-in-the-south-china-sea-3601.html   The Philippines could make the same objection to Malaysia’s latest submission. Moreover, its potential extended continental shelf claim may encompass part of the area claimed by Malaysia.

Then there is the question of the timing of Malaysia’s claim. Even if there had been no objections, due to backlog, the CLCS will probably not consider Malaysia’s 2019 claim for decades– which makes the timing of the filing more mysterious. http://vietnamlawmagazine.vn/claims-to-the-outer-limits-of-the-continental-shelf-in-the-south-china-sea-3601.html

Given that Malaysia was not facing any deadline to file this particular claim, there has been considerable speculation as to why now, particularly considering that China among others – was certain to object.  Indeed, one of the puzzling unanswered questions is why Malaysia would throw caution to the wind at this particular time and risk alienating China.

Source: https://thediplomat.com/2019/12/malaysias-new-game-in-the-south-china-sea/
Source: https://thediplomat.com/2019/12/malaysias-new-game-in-the-south-china-sea/ 

Some have suggested that the timing was meant to pressure China regarding renegotiations concerning major investment and development projects. https://www.voanews.com/east-asia-pacific/why-old-friends-china-malaysia-suddenly-disagree-over-tract-sea  But Malaysian Prime Minister Mahathir Mohamed has been consistently non-confrontational with China.  As he has said, Malaysia is simply “too small to face up to China.”   “We watch what they are doing, we report what they are doing, but we do not chase them away or try to be aggressive _ _ so we use other means.” https://www.reuters.com/article/us-malaysia-china/malaysia-pm-says-cant-provoke-beijing-on-south-china-sea-uighur-issue-idUSKBN1WD0BY China and Malaysia have agreed to a joint dialogue mechanism for the South China Sea. Moreover, the renegotiations over China’s major Belt and Road initiatives in Malaysia have been completed in Malaysia’s favor. 

Others note that the cover page of the submission was dated 2017. https://thediplomat.com/2019/12/malaysias-new-game-in-the-south-china-sea/  Given the turbulent domestic politics in Malaysia at the time, perhaps the submission was delayed until the new leadership was decided, solidly established and felt confident in proceeding. Or maybe Malaysia was trying to get Vietnam and the Philippines to join it in this submission and failed to do so. The simplest explanation may be that it took this long for the government to get its collective act together.

Whatever the reason, the submission had other complications besides claiming an area that China and the Philippines might claim.  It overlapped Vietnam’s claimed “northern area” and ignored the possibility of a Vietnamese claim from its central coast or even the Paracels which it disputes with China.  

Moreover, Malaysia’s submission stated that the “subject of this Partial Submission is not located in an area which has any land or maritime dispute between Malaysia and any other coastal State.” This was true until it made this submission.  But now it has disputes with China and Vietnam –and potentially with the Philippines.

The point is that it is relatively easy to make a claim to an extended continental shelf or other maritime zones for that matter but there are many political and legal consequences and complications of doing so. Each such claim adds to the difficulties of boundary delimitation. This new claim certainly adds to the open can of worms that are the maritime disputes in the South China Sea.

Mark J. Valencia

Mark J. Valencia

Mark J. Valencia, is an internationally known maritime policy analyst, political commentator and consultant focused on Asia. He is the author or editor of some 15 books and more than 100 peer-reviewed journal articles. He is currently an Adjunct Senior Scholar, National Institute for South China Sea Studies, Haikou, China.

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